Madhya Pradesh High Court
Pawan Kumar vs Mukesh on 6 May, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 6th OF MAY, 2024
SECOND APPEAL No. 2908 of 2023
BETWEEN:-
PAWAN KUMAR S/O GOKULPRASAD AGRAWAL,
AGED ABOUT 54 YEARS, OCCUPATION: BUSINIESS
BARUPHATAK, TEHSIL THIKRI, DISTRICT BARWANI
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI ASHOK KUMAR SURAJMAL GARG - SENIOR ADVOCAE WITH SHRI
JITENDRA SHUKLA - ADVOCATE)
AND
1. MUKESH S/O LAKSHMANDAS MAHAJAN,
AGED ABOUT 54 YEARS, OCCUPATION:
BUSINESS THIKRI, TEHSIL THIKRI, DISTRICT
BARWANI (MADHYA PRADESH)
2. SMT. CHAYADEVI W/O MUKESH MAHAJAN,
AGED ABOUT 46 YEARS, OCCUPATION:
HOUSEWIFE VILLAGE PIPRI, TEHSIL THIKRI,
DISTRICT BARWANI (MADHYA PRADESH)
3. STATE OF M.P. THROUGH COLLECTOR
BARWANI, DISTRICT BARWANI MADHYA
PRADESH)
.....RESPONDENTS
(SHRI VEER KUMAR JAIN - SENIOR ADVOCATE WITH SHRI DIVYANSH
LUNIYA - ADVOCATE FOR RESPONDENTS NO.1 AND 2.)
----------------------------------------------------------------------------------------------
This appeal coming on for admission this day, the court passed the
following:
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 08-05-2024
12:34:33
2
ORDER
This present second appeal under Section 100 of CPC has been filed by
the defendant/appellant being aggrieved by the judgment and decree dated
31.102023 passed by learned Principal District Judge, Barwani in Regular
Civil Appeal No.21/2023 affirming the judgment and decree dated 27.03.2023
passed by the learned Civil Judge, Junior Division, Anjad, District Barwani in
Regular Civil Suit No.RCS-A/13/2016.
2. The brief facts of the case are that respondents no.1 and 2/plaintiffs filed
a civil suit for declaration permanent injunction and possession of land bearing
Survey No.27/4/1 of village Thikri, Tehsil Anjad, district Barwani. It is alleged
in the plaint that on the part of the said land, appellant/defendant had
encroached therefore, he sought declaration, permanent injunction and
possession.
3. The defendant/appellant contested the suit and denied that he has not
encroached upon any part of the land of plaintiffs bearing survey no.27/4/1 of
village Thikri.
4. The trial Court framed issues, recorded the evidence of the parties and
after hearing both the parties, decreed the suit. Being aggrieved by the
aforesaid judgment and decree, the appellant/defendant filed first appeal before
the first appellate Court and the first appellate Court also dismissed the appeal
by affirming the judgment and decree passed by the trial Court.
5. Being aggrieved by the judgment and decree passed by the first appellate
Court, the appellant/defendant filed the present second appeal and submitted
that the judgment and decree passed by trial Court as well as the first appellate
Court are illegal and not based on proper appreciation of evidence. It is further
submitted that the trial Court as well as the first appellate Court have failed to
consider the oral and documentary evidence produced by the appellant. The
trial Court as well as the first appellate Court erred in allowing the suit
preferred by the plaintiffs. The findings of trial Court as well as the first
appellate Court are perverse and against the evidence available on record.
Hence, it is submitted that the appeal deserves to be admitted on the substantial
questions of law proposed by the appellant.
6. Heard learned counsel for the parties at length and perused the entire
record of the trial Court as well as the first appellate Court with due care.
7. Learned counsel for the appellant argued that the trial Court as well as
the first appellate Court has committed error in not issuing commission for
demarcation of the suit property in question. He argued that it is the duty of the
Court to issue commission by appointing an employee of the Revenue
Department for demarcation and identification of the suit property. He relied
on the judgments in the case of Durga Prqasad Vs. Parveen Foujdar and
others 1975 MPLJ 801, Jaswant Vs. Deen Dayal 2011 (2) MPLJ 576,
Jagdish Prasad Vs. State of M.P and another 2009 RN 161, Haryana
Waqf Board Vs. Shanti Sarup and others (2008) 8 SCC 671.
8. From the perusal of the record of the trial Court it appears that plaintiffs
filed civil suit for declaration, permanent injunction and possession of the land
bearing Survey No.27/4/1. It is true that when there is a dispute regarding
demarcation of the property in question then it is the duty of the Court to
appoint Commissioner for demarcation and identification of the suit property,
but in the present case, plaintiffs and defendants both have applied for
demarcation of suit property. Plaintiffs applied for demarcation of suit property
whereby the order no.1105/Reader/1/2017 dated 06.04.2017 of SDO (Revenue)
Rajpur, the demarcation was conducted by team of officers and employees of
Revenue Department. The team prepared Panchnama Ex.P-19 and submitted
demarcation report Ex.P-18 in which it was found that defendant has
encroached the land of the plaintiffs.
9. The defendant/appellant also moved an application for demarcation of
the property Survey No.27/3 which was adjoining to the land of the plaintiffs.
The appellant admitted in the argument that he also filed application for
demarcation in which Revenue authorities found that he encroached some land
of the plaintiffs and other persons encroached theland of the defendant.
Demarcation report is Ex.P-20. It is true that when demarcation and
identification of the property is disputed, Commissioner is appointed for this
demarcation and identification. In the present case, both parties filed
applications before the Revenue Authorities for demarcation and the same was
done and appellant has admitted that in demarcation report revenue authorities
found defendant/appellant encroached the land of the plaintiffs, hence, no need
to appoint fresh commissioner for demarcation. Hence, the aforesaid judgments
relied upon by the learned counsel for the appellant is of no help.
10. In the present case, on the basis of the documents filed by the plaintiffs
and defendant and evidence led by both the parties, the trial Court as well as
the first appellate Court on the basis of the documents and evidence have given
concurrent findings of fact that respondents/plaintiffs proved that
defendant/appellant encroached the land of the plaintiffs.
11. In the light of the aforesaid discussion, this Court is of the considered
opinion that the impugned judgment and decree passed by the trial Court as
well as the first appellate Court are well reasoned and based on due
appreciation of oral as well as documentary evidence available on record. The
findings recorded by the trial Court as well as the first appellate Court are
concurrent findings of fact. The appellant has failed to show how the findings
of fact recorded by the trial Court as well as the first appellate Court are illegal,
perverse and based on no evidence. Thus, no substantial of law arises for
consideration in the present appeal.
12. Accordingly, the present second appeal is devoid of merit and is hereby
dismissed.
(HIRDESH)
JUDGE
RJ
